ALJDEC - Licensing

2023A-14615-CHC-ROC · Registrar of Contractors · 2024-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scott Abbott,

COMPLAINANT

Fishbone LLC,

License Nos. ROC 274929, 339827,

RESPONDENT

No. 2023A-14615-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 24, 2024

APPEARANCES: Complainant Scott Abbott appeared on his own behalf. Registrar of Contractors Investigator Miles Crosby appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Arizona Pools & Design LLC. (Respondent) is the holder of License Nos. 274929, 339827 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 17, 2022, Scott Abbott (Complainant) agreed to have Respondent construct personal residence in Vernon, Arizona. The contracted amount was $400,000.00.

On or about December 28, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Miles Crosby. The jobsite inspection was performed on January 23, 2024.

Investigator Crosby then issued a written directive on or about February 9, 2024, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Wednesday, February 28, 2024.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - No stamped foundation plan was provided by a civil or structural engineer licensed in the State of Arizona.

Investigator’s Observation: No plans were provided by either party but should have been provided to the Apache County Building Department for plan review. This should be provided to the Complainant upon request

Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Compliance Item: 4 - The perimeter turndowns should have included pedestals and have additional vertical rebar and rebar ties for the locations directly below the metal columns to help transfer both downward and upward forces from the columns above them.

Investigator’s Observation: No piers present to isolate the columns. IF pier support is not required, the foundation must have structural engineered concrete with supporting documentation for the concrete specification. The documentation must also have the batch information. Slump, any added water at time of pour and PSI ratings, should all be documented by a certified 3rd party.

Compliance Item: 5 - The contractor provided slab cold joints in two locations but there was no detail of how these cold joints should be constructed.

Investigator’s Observation: No engineered plans provided. However, the cold joints do not meet standards as they are different elevation.

Compliance Item: 7 - The top surface of the slab is uneven in many areas of the floor.

Investigator’s Observation: The slab does not meet FF/FL standards with multiple areas that have greater than 1/2"in 20'.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - The foundation sketch indicates a thickness of 5 inches, but the opening in the slab shown in photo is approximately 31⁄2”

Investigator’s Observation: The open areas in the slab do not meet

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On March 8, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.01; and A.R.S. § 32-1154(A)(22).

On or about March 22, 2024, Respondent e-mailed an Answer to the Registrar. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Further, on May 7, 2024 the Tribunal issued an Order containing the Google Meet information and e-mailed the same to both parties’ email addresses of record.

On or about April 4, 2024, a Notice of Hearing was issued setting a hearing on May 23, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Crosby testified as to the Registrar’s involvement and the above timeline.

Investigator Crosby testified that Complainant had originally filed a Complaint and that the parties had tried to resolve the same, but after that failed, Complainant filed the present action. Respondent failed to appear at the Jobsite Inspection.

As to the Directive items, Investigator Crosby testified that there were no plans submitted to the Apache County Building Department and that Complainant had never received a set of plans. Further, there were issues with the foundation as there were no piers or structural engineered concrete to support the foundation; the cold joints did not meet standards because they were at different elevations; the top surface of the slab was uneven; and finally, there were open areas in the slab that did not meet standards.

Investigator Crosby also testified that just before the end of the Directive timeline, Respondent notified him of a possible resolution but did not provided specifics therefore, he moved forward with the Citation.

In addition, Investigator Crosby testified further that the parties’ contract was not compliant with the statute as the contract did not contain the required items, such as a date of completion, the draw schedule, and the “right to file language”.

Complainant testified that he had paid $270,000.00 to date on the contract which was what was owed up to this point based upon the work completed to the “dry-in stage”.

Further, Complainant testified that on November 21, 2023 a structural engineer made a report which found numerous issues, and that Respondent wanted to repair some of the issues, but it would not have properly resolved the defects.

Lastly, Complainant provided a completed contract he had in his possession, which was different from the one in the Agency file.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice was taken of Respondent’s prior License record on June 5, 2024. Such prior License record reflected that Respondent’s License No. 274929, was voluntarily canceled on August 1, 2022. The License record also reflected that Respondent’s License No. 339827 was first issued on August 1, 2022, and reflected that there were two open cases, one of which was the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established there were no plans provided to Apache County or Complainant, and there were no piers or structural engineer concrete to isolate the columns. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(2)(a).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The top surface of the slab was uneven, there were open areas in the slab and the cold joints were a different elevation. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The preponderance of the evidence established that the contract provided by Complainant at hearing did not contain the procedures provided for by the registrar for resolution of claims, as well as a provision advising the Complainant of his rights. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Per the undisputed testimony, Respondent never attempted the corrective work. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

However, the tribunal does not find a violation for A.R.S. § 32-1154(A)(1), as the evidence provided that Respondent did not abandon the job, rather it failed to complete the Written Directive as described above.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 339827 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that Respondent provide the Registrar with an updated sample contract which fully complies with A.R.S. § 32-1158 within 30 days of the final order. Failure to do so may result in an extended suspension.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, June 5, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Fishbone LLC

[email redacted]

Scott Abbott

[email redacted]

By: OAH Staff